Tuesday, March 27, 2007

Jury instructions

A typical jury instruction in Texas:

A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

I'm too busy to rewrite it now, and let's be honest: this would be hard to rewrite.

But we should make the effort. This instruction is used in criminal cases, and the accused's freedom may depend on the jury's understanding of recklessness. Shouldn't we explain it in language the jury can understand?

Not that the Flesch score and Flesch-Kincaid grade level are the ultimate indicators, but the Flesch score of this text is 29 (60 is plain) and the grade level is 19.

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[Plain language] has a bad name among some lawyers. This is usually because they don't understand enough about it to judge it properly. --Michele M. Asprey, Plain Language for Lawyers 11 (2d ed., Federation Press 1996).

A related bonus of a plain language style is the potential for reducing mistakes. Traditional legal language tends to hide inconsistencies and ambiguities. Errors are harder to find in dense and convoluted prose. Removing legalese helps lay bare any oversights in the original. --Peter Butt & Richard Castle, Modern Legal Drafting: A Guide to Using Clearer Language 89 (Cambridge U. Press 2001).